Franklin School Board considering lawsuit against city council

From left: Peter Heath, Al Warner, Paul Trudel and George Dzujna listen to Tony Giunta speak during a joint meeting between members of the Franklin city council and school board at the Franklin Opera House in Franklin on Wednesday, July 17, 2013. The meeting was moderated by Don Jutton, President of Municipal Resources.
(TAEHOON KIM / Monitor staff)

The Franklin School Board is poised to take the city council to court as early as today in an attempt to prevent the council from removing any school board members from office.

The board voted, 5-3, to file the lawsuit Wednesday night, just hours after a three-hour meeting with the city council meant to ease long-term friction between the two groups. At issue are two petitions, each with 100 signatures, calling for the ouster of Chairman Ray Yonaitis and board member Kathleen Russo that were filed with the council after the board fired football Coach Greg Husband. The council has scheduled a July 29 public hearing on the petitions. The board’s lawsuit requests an injunction to stop the council from taking action and a ruling that the council has no authority to remove school board officers.

Attorney Melissa Hewey said the board would give the council time to respond in hopes of avoiding a court date. But if the council maintains that it has authority, the suit will be filed in Merrimack County Superior Court today or Monday, Hewey said. The drafted lawsuit requests an emergency court date before the July 29 hearing.

In response to the board’s vote, the city council called a meeting last night with city attorney Paul Fitzgerald on the issue. The meeting was nonpublic and no action was taken, Mayor Ken Merrifield said. The council has not declared an intention to remove Yonaitis and Russo but says it is following the city’s administrative code by scheduling a hearing on the petitions. That code says the council must at least hear grievances of any petitioner to remove a municipal officer.

“All that the council has done to this point is to set up a public hearing to hear the grievances of citizens,” Merrifield said. “We could set up a public hearing for any purpose, and it seems to me that this is a bit premature.”

A lawsuit was not discussed during the board and council’s joint meeting Wednesday evening. But the school board held its own special meeting with Hewey just half an hour later. The meeting was held at the administrative offices, and several councilors and board members said the public had a difficult time entering because visitors must be buzzed in. Yonaitis said the meeting was held there because the building has air conditioning, and the schools where the meetings are normally held were being cleaned.

Despite the board’s decision to take legal action against the city, Yonaitis said he hopes the city and school board can work together on other issues.

“The legal action we are taking is a principle of law and not a reflection of personalities,” he said in an email.

The lawsuit argues that the city’s administrative code doesn’t override the board’s own removal policies. School board policies, based on state statutes, say the only way members can be removed is if they violate laws regarding school finances or knowingly divulge nonpublic information. The city’s administrative codes say its removal process takes hold “unless otherwise provided for by ordinance or statute.”

“If the Council had authority to remove School Board members, this power would negate the election process, and essentially give the Council absolute power over the school district,” the lawsuit states.

The school’s attorneys also argue that if the city code did apply to removal of board members, the petitioner or council would need to state just cause. The two petitions do not state a specific reason for removal, but it’s well known that the petitioners did not agree with the board’s decision to fire the football coach.

“Just cause does not exist merely because the citizens of Franklin or the Council disagree with a School Board member’s position regarding non-renewal of the football coach,” the suit says.

Not all the board members were in favor of filing a lawsuit to stop the public hearings from proceeding. Tamara Feener and Peter Heath both said they believe members of the public have a right to be heard. Board member Ed Cogan also voted against the motion. Yonaitis and Russo both voted in favor of filing the lawsuit. Hewey, the board’s attorney, said she did not see their votes as posing a conflict of interest because the removal of officers affects the whole board more than it affects the individuals.

“What we’re talking about here is not really the individuals but the legal principal that the council can’t remove school board members,” Hewey said.

The lawsuit also requests the city council pay for the board’s legal fees. Filing the injunction will cost between $5,500 and $7,000.